PARLIAMENTARY PRIVILEDGES AND IMMUNITIES
THIS ARTICLE WAS WRITTEN BY SPOORTHY PERAPOGU, A STUDENT OF NALSAR UNIVERSITY OF LAW, HYDERABAD.
Under the constitution of India, parliamentary privileges are deemed necessary for the functioning of the members of parliament, legislature and committees. But these privileges have been used as immunity against certain acts causing damages though in most cases supreme court held that parliamentary privileges cannot be as immunity against acts of vandalism but should be balanced with fundamental rights. This article speaks about the balance between fundamental rights and parliamentary privileges and look into the circumstances where conflict between parliamentary privileges and fundamental rights had taken place and adjudications on such issues etc.
Parliamentary privileges:
Sir Thomas Erskine Ma[i]y defines parliamentary privilege as “ the sum of the peculiar rights enjoyed by each house collectively is a constituent part of the High court of the parliament and by members of each house individually, without which they couldn’t discharge their functions, and which exceed those possessed by other bodies and individuals”.
Under the article 105 of the constitution, parliamentary privilege has been defined and two privileges namely freedom of speech and freedom of publication of proceedings were mentioned initially and the other privileges were mentioned after the amendment in 1978 which were earlier laid down in the House of commons of the UK constitution.
Freedom of Speech : The freedom of speech under this article is different from that which a citizen enjoys as a fundamental right under Article 19(1)(a)[ii]. The freedom of speech as a fundamental right does not protect an individual absolutely of what he speaks. This is subjected to reasonable restrictions under Article 19. But the parliamentary privilege of freedom of speech means that no parliamentary member shall be liable to any civil or criminal proceedings in any court for the statements made in debates of parliament or any parliamentary committee. The freedom of speech as a parliamentary privilege cannot be restricted under article 19(2). Article 105(1) and 105 (2) protect a member of parliament from what he said inside the house but not outside. If a member publishes his speech outside the parliament, he would be held liable if the speech is defamatory.
A very popular case, P.V. Narasimha Rao v. state 1998 4 SCC 626[iii] ; the facts involved here are in election to Lok sabha 1991, since congress party had 14 members short of majority; it formed a minority government with P.V. Narasimha Rao as prime minister and the government has to go no confidence motion in the house, and it however managed to win by gaining majority support. A member of Rashtriya Mukhti Morcha had filed FIR with CBI alleging that there was a criminal conspiracy and the prime minister P.V. Narasimha Rao had given bribes to Janata Dal party members to gain votes in the no confidence motion. CBI started criminal prosecution against both the parties who had given and received the bribe. The special judge held them liable to bribery and criminal conspiracy. They charged petitions at Delhi High court for quashing of the criminal proceedings. The Delhi High court has dismissed the petition. And the appeals were presented before the special constitution bench where the bench held:
Immunity under article 105(2) of the constitution is not avaliable for any acts involving personal or private capacity. The acts of involving conspiracy and acceptance of bribe are not outside the four walls of the house, they cannot claim immunity.
Right of publication of proceedings:
Clause (2) of Article 105[iv] expressly declares that no person shall be liable in respect of publication by order under the authority of a House of parliament of any report, paper, votes or proceedings. This has been strengthened by inserting article 361(A) by 44th amendment which says protection of publication of proceedings of parliament and state legislatures. Common law accords the defence of qualified privilege to fair and accurate unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere. In Wason v Walter[v] Cockburn CJ observed that it was of paramount importance that parliamentary proceedings should be communicated to the public.But a report of detached parts of proceedings published with the intent of injuring individuals, will be dis entitled to protection. Parliamentary proceedings Act ( protection of publication) Act, 1956 says that no person shall be liable to any proceedings civil or criminal in any court in respect of publication of a substantially true report of the proceedings of either House of parliament, unless it is proved that publication has been made with malice.
III.Freedom from arrest:
In India freedom from arrest has been limited to civil cases and has not been apploed to arrest on criminal charges or to detention under preventive detention Act, 1950.
In K. Ananda Nambiar & Umanath v Govt. of Madras[vi] court held that parliament do not enjoy any special status as compared to an ordinary citizen as respect of valid orders of detention.
Right to exclude strangers:
This privileged was exercised during the wars of 1914-1918, and 1039-45, where secret sessions were held frequently to discuss important matters. Secret sessions should be avoided except for imperative reason and it is necessary that voters should be informed of what their representatives are doing in the legislature.
Right to regulate internal proceedings:
The House has exclusive right to regulate its internal proceedings and to adjudicate upon matters arising within the house. Except in ordinary cases court will not interfere in such issues.
Article 122 provides that the validity of any proceedings shall not be in question on the ground of any alleged irregularity of procedure and no member of parliament in whom powers are vested by or under the constitution for regulating the regulating the procedure or the conduct of business or for maintaining order in parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
Right to punish members or outsiders for contempt:
The House has two powers one to punish for the breach of its specific or defined privileges and the other to punish for the contempt of the court. What constitutes contempt is not defined but determinable by the house.
In parliamentary language, the term breach of privileges is sometimes used as replacement for the word contempt. They contempt can also include misconduct by strangers in the presence of either house, disobedience to the rules or wishes of either house, abuse of right of petition, acceptance of bribe in relation to parliamentary matters, defamatory or disrespectful speeches or writings outside the house reflecting on the house etc.
VII. Right to expel members:
Right to expel members could also be included under privilege to punish for contempt but in the case of Raja Ram Pal v Hon’ble speaker, Lok sabha where 9 members of Lok sabha and 2 members of Rajya sabha were expelled on allegations of having accepted bribe for asking questions in parliament challenged the validity of the expulsion among others on the ground that parliament members does not have such privilege . The majority bench held that such a privilege did not fall within the privilege of the house to regulate ts constitution but it fell within the privilege to punish for contempt.
Parliamentary privileges and Fundamental Rights:
In M.S.M.Sharma v Sri Krishna Sinha[vii] the petitioner has argued that privileges of the house under section 194(3) are subject to provisions of part III of this constitution. The supreme court here relied on Gunupati Keshavaram Reddy v Nafisul Hasan and State of U.P.[viii] where the Homi ministry arrested at his Mumbai residence under a warrant issued by the speaker of U.P Assembly for contempt of the house and was flown to Lucknow and kept in a hotel in speaker’s custody. On applying writ of haebus corpus case, the supreme court directed his release as he had not been produced before a magistrate within 24 hours of arrest as provided in Article 22(2). The court here held that in case of dispute between parliamentary privileges and fundamental rights, privileges should be subjected to fundamental rights.
Court in M.S.M. Sharma case, did not follow the decision in Gunupati case, and held that Parliamentary privileges shall not be subject to fundamental rights. In re, the court held that the proposition laid down in sharma case shall not mean that in all cases priileges shall override fundamental rights but in case of dispute between provisions of parliamentary privileges and fundamental rights; fundamental rights , the latter must yield to the former.
In V. Sivankutty & Others v State of Kerala[ix] where leaders destroyed public property and disrupted a budget speech on the state assembly floor in 2015 where supreme court held that vandalism on Assembly floor, destruction of public property cannot be treated equally with right to protest and freedom of speech.“Parliamentary privileges and immunities are not ‘gateways’ for legislators to claim exception from the law of the land, especially criminal law,” a Bench of Justices D.Y. Chandrachud and M.R. Shah observed in this judgment.
CONCLUSION:
Parliamentary privileges are essential for the functioning of the parliamentary members to mark a character of its ancillary character which means a necessary means to fulfillment of functions. Subject to the privileges enjoy by the members of the parliament there should always be held balance between fundamental rights and parliamentary rights.
The author is of the view that there is a thin line between fundamental rights and parliamentary privileges but should use the privileges in efficient way.
In a recent supreme court case, where the court held that immunity cannot be held for criminalizing acts.
While delivering the speech the members have most high responsibility to use them with utmost care and caution thus it becomes important for them to abide by the norms of the house. For any democratic institution to function efficiently there should be coordination, harmonious relationship, between the major pillars of the state I.e. legislature, executive, judiciary and it always to uphold their individual functions properly with due care.
[i] .Sir Thomas Erskine May: Parliamentary Practice, 16th Edn., Chapter III, p.42
[ii] Article 19(1)(a) in The Constitution Of India 1949
(a) to freedom of speech and expression
[iv] No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
[v] https://swarb.co.uk/wason-v-walter-ex-parte-wason-qbd-1868/
[vi] https://indiankanoon.org/doc/1740805/#:~:text=Ananda%20Nambiar(1)%2C%20it,the%20sittings%20of%20the%20House.
[vii] https://indiankanoon.org/doc/944601/
[viii] https://indiankanoon.org/doc/528695/
[ix] https://www.casemine.com/judgement/in/5dc075793321bc77c508adf0
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